Mullaperiyar Dam Case : Supreme Court Asks Centre About Scope Of Authority Under Dam Safety Act 2021

Justice A. M. Khanwilkar: "Then we will pass order. The whole problem can be resolved by improving the mechanism which already exists. We only have to make it more effective"

Mr. Gupta: "That is the line on which we exchange notes"

Justice Khanwilkar: "Then you give your notes. On that basis, appropriate orders will be passed. That is the whole issue"

Mr. Gupta: "We will give those notes to your lordships also. The difficulty is that some of those can only follow if your lordships have heard us out"

Justice Khanwilkar: "Yes, yes, certainly, but those inputs can be given to us. we will take that into account and we have to pass that order"

Senior Advocate Shekhar Naphade, for the state of Tamil Nadu: "There is one more dimension which I must bring to your lordships' notice. There is a Dam safety act which has come into force in December, 2021 under which several new authorities are constituted. The most important authority is the national Dam safety authority. It virtually takes over all functions which the (court-appointed Supervisory Committee was carrying out)…that is what the Union of India wanted to show to your lordships"

Justice Khanwilkar: "We can consider that"

Mr. Gupta: "There is no difficulty if there is a statutory provision. But I must tell you that none of these committees have come into existence…"

Mr. Naphade: "That is true. I am only pointing out there is a new regime"

Justice Khanwilkar: "we will look at that provision also and see if it is already operational or not. That will also be considered"

Mr. Naphade: "the point of difference is that they want at any cost the new dam"

Mr. Gupta: "it is one of the most fundamental aspects that whatever was discussed in the negotiation should be mentioned here. If we were leading on the negotiation, then of course everything would be placed before your lordships"

Justice Khanwilkar: "yes, that will not happen…If there are certain directions required, we will consider"

Mr. Gupta: "the only one issue we have agreed on is adding 2 technical members to the supervisory committee"

Mr. Naphade requested that the bench allow him to circulate the new Act and adjourn the matter to Tuesday to peruse the same. The bench insisted on listening to the matter on Thursday itself after the overnight part-heard, indicating that if need be, it may be adjourned to Tuesday.

Justice Khanwilkar: "that is why we want them to file a note as to what their plea is and what their stand is"

Justice Khanwilkar: "It is a very comprehensive act. Even without looking at this act, we wanted the two of you (Kerala and Tamil Nadu) to work on these lines. Now that the Act is there, the authority is there, all functions must go to that authority. Even the efficacy of the supervisory committee formulated by this court will have to be gone into- Whether it should remain"

The bench indicated that the authorities under the Act are responsible for undertaking "remedial measures" which are defined as "such structural or non-structural measures, as may be required in relation to the specified dam or appurtenant structure or reservoir or reservoir rim or catchment area of reservoir for the purpose of removing or mitigating the distress condition of the specified dam"

Justice Khanwilkar (in lighter vein): "This is not exhaustive. It is short of settling of political scores. That authority is not with this authority"

Mr. Gupta: "even in the report that the Centre has filed in January, this Act is not referred to…"

ASG: "I apologise I mistakenly said no response was filed after the Act…but the notification in terms of the Act had not taken place then"

Justice Khanwilkar: "File your note. The timeframe you will have to define- when this authority becomes functional because it will have to deal with the issues; how does the authority resolve all the issues; the wherewithal to do that…Now it is completely within the scope of the authority, it is not only the power to do something but an obligation and duty in respect of all matters relating to safety of specified Dams. The Centre will now have to take a firm stand as to what extent and how early you can do it so that these issues can be straightaway referred to that committee or authority. Let them file a note as to how they want to go about the act. Because now it is entirely the responsibility of the authority. Give us the timeline, give us the structure, how to go about it- because every issue is covered by this scheme. There is no doubt about it. We will have it on Tuesday. File your note"